Document 32
September 17, 1998
Jeremy R. Knowles, Dean
5 University Hall
Harvard University
Cambridge, MA 02138
RE: Peter Berkowitz
Dear Dean Knowles:
On August 27, 1998, Professor Berkowitz wrote to you requesting your assistance in setting aside President Rudenstine's
decision of April 1997 to reject the Government Department's recommendation that Professor Berkowitz be promoted
and awarded tenure. As Professor Berkowitz's attorney, I want to express my concerns about both the structure of
Harvard's appeals process and the manner in which Harvard has handled Professor Berkowitz's appeal of President
Rudenstine's decision.
In response to my initial letter to the Joint Committee on Appointments (December 5, 1997), Anne Taylor, Harvard's
general counsel, indicated that but for her finding of lack of evidence, the Joint Committee was prepared to review
Professor Berkowitz's appeal:
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I have made inquiry with respect to the composition and conduct of the Berkowitz ad hoc committee. I can find no
evidence to support your allegation that Professor Berkowitz was denied due process in any aspect of the process;
hence, I have no basis for recommending to the Joint Appointments Committee that the matter be reconsidered. (December
29, 1997) |
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Yet in May, after our own investigation disclosed substantial evidence of both unfairness and irregularity in the
tenure review process, Professor Charles Nesson, Professor Berkowitz's legal advisor, was told that the Joint Committee
was not even prepared to hear Professor Berkowitz's appeal. Michael Roberts, former Secretary of the University
and Assistant to the President, informed Professor Nesson by letter that in regard to Professor Berkowitz's appeal,
"the Joint Committee on Appointments is not an available or appropriate forum" (May 22, 1998). Mr. Roberts
cited no rule and provided no explanation. In a further oddity, Mr. Roberts volunteered this judgment in response
to a draft, posted on the Internet, of our still unsent letter. We have received no formal response of record to
our letter of record (May 26, 1998).
Based on Ms. Taylor's and Mr. Roberts's conflicting statements, we are confused about the role of the Joint Committee;
whether, at this point, it has any jurisdiction; and, if the Joint Committee is not an available or appropriate
forum, where Harvard, as represented by Ms. Taylor and Mr. Roberts, thinks we should go from here, procedurally.
Accordingly, we would appreciate if you could direct us to the rules that establish the jurisdiction of the Joint
Committee on Appointments.
We have questions as well about the authority of the Dean of the Faculty of Arts and Sciences to review a decision
of the President. In his May 22 letter to Professor Nesson, Michael Roberts indicated that Professor Berkowitz
should turn to your office:
The issues you raise in your draft letter involve a faculty member of the Faculty of Arts and Sciences and the
tenure review process of that Faculty. If Professor Berkowitz has concerns about that process, I would suggest
that he inquire of the Dean of the FAS as to whether these concerns are covered by FAS procedures. (May 22, 1998)
We hope that you can now clarify the authority of the Dean of the Faculty of Arts and Sciences to review a decision
of the President of the University and direct us to the guidelines that cover such matters.
We are also concerned about the manner in which Harvard thus far has investigated Professor Berkowitz's grievances.
Our own investigation (some of the results of which are summarized in our May 26 letter to the Joint Committee)
demonstrated the inadequacy of Anne Taylor's "inquiry" in December, an inquiry that served to block Professor
Berkowitz's access to the Joint Committee.
Indeed, almost nine months ago I raised questions about the quality of Harvard's investigation. To help focus the
discussion for a meeting on January 30, 1998, I wrote to Anne Taylor to share my concerns about the tenure review
process at Harvard and her review of the process in Professor Berkowitz's case:
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. . . I would be interested in the nature, scope and content of your inquiry. Your review led you to conclude that
there was no evidence of a denial of due process and no evidence of hostility, bias or conflict of interest and,
therefore, no basis for recommending that the Joint Committee on Appointments reconsider Peter's case. I would
not expect you to provide details of your fact finding in your letter to me, but I do think that Peter and I are
entitled to know the fact finding process you went through -- with whom you spoke, what was reported to you, etc.
-- so that we are satisfied (not unlike a litigant in the appellate process) that your inquiry was a thorough and
objective one and that your conclusion that the procedures were fully complied with was justified by the record
you created. (January 26, 1998) |
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At our meeting on January 30, Ms. Taylor refused to provide details concerning her fact finding process. At the
same time, she assured me that her investigation had been thorough and objective. We now know that is not the case:
Ms. Taylor did not even contact Professor Berkowitz, and she did not interview key figures in the review process.
We believe that we are now entitled to know the nature and extent of the "inquiry" that Ms. Taylor undertook
in December 1997. We also believe that we are entitled to answers to the questions we posed in our May 26 letter
to the Joint Committee. And we wonder whether your office is willing at this point to undertake the thorough and
objective investigation of Professor Berkowitz's appeal which Harvard claimed that it had completed last December
but which in fact Harvard never delivered.
Finally, we are concerned about the remedy that your office is prepared to provide Professor Berkowitz. On the
one hand, as Dean Carol Thompson explains in her memo of March 27, 1998, the Dean's Office has responsibility for
ensuring integrity in the tenure review process. On the other hand, Professor Berkowitz's grievances concern actions--the
formation and composition of the ad hoc committee--and omissions--the failure to require Associate Provost and
Professor of Government Dennis Thompson to recuse himself from Professor Berkowitz's tenure review--on the part
of the Dean's Office. Consequently, insofar as it reviews Professor Berkowitz's appeal and investigates our allegations,
the Dean's Office acts as judge in its own cause and both judge and party in the same process.
Moreover, I, together with Professors Berkowitz and Nesson, have always regarded our appeal to be from President
Rudenstine's decision. You, as Dean of the Faculty of Arts and Sciences, like Anne Taylor, serve at the President's
behest, and thus are not independent of him. In legal terms, you are twice biased. What assurance do we have that
your process and judgment will be fair?
I would like to propose a constructive solution, one which I and Professors Nesson and Berkowitz believe the whole
Harvard community of faculty, staff, students, and alumni would accept as fair. I propose that you convene a new
committee, composed of Harvard's University Professors, to examine both the process and substance of the Berkowitz
tenure review.
I would welcome the opportunity to further discuss the matters raised in this letter.
Very truly yours,
Matthew H. Feinberg
MHF/rg
cc: Peter Berkowitz, Associate Professor of Government, Harvard University
Charles Nesson, Weld Professor of Law, Harvard Law School
Anne Taylor, General Counsel, Harvard University
Dennis Thompson, Associate Provost and Professor of Government, Harvard University
Neil Rudenstine, President, Harvard University